先合同信息披露法律制度研究
发布时间：2018-08-26 15:02
【摘要】：本文以构建我国先合同信息披露法律制度为目的,通过法律的经济分析、比较法考察等手段,从这个制度的历史流变、制度基础和价值、先合同信息披露的基本规则以及具体制度构建中的考量因素等方面展开论述并提出了相应的立法建议。全文共分为如下五章：第一章第一节对契约法最基本的原则——契约自由与先合同信息披露法律制度间的关系的历史流变进行了梳理。首先指出在罗马法上,自契约诞生时起,契约自由就受到了限制,先合同信息披露只是其中的限制之一。其次,在契约自由被完全压制的中世纪和契约自由过度高涨的古典契约法时期,均没有先合同信息披露法律制度生长的土壤。而在现代契约法阶段,契约自由的理性回归及缔约实务的发展再一次使这个制度获得了重生。第二节从经济学理论的角度对先合同信息披露法律制度的合理性和价值进行了论证,选取了近年来最受瞩目的三个经济学分支——信息经济学、行为经济学以及新制度经济学的相关理论作为论证的支撑。第三节将关系契约理论作为法学理论论证的切入点,详细阐述了在该理论的视角下这个制度所具有的合理性及价值。第四节在前两节对先合同信息披露法律制度的合理性进行论证的基础上,提出应当将有条件的诚信原则作为先合同信息披露法律制度的合同法基础。值得指出的是,诚信原则作为手段,而非立法追求的结果,并不意味着要求信息拥有方知无不言言无不尽,而是需综合考量交易背景、惯例以及效率价值等因素后有条件的诚信。如果将诚信原则作为法律追求的结果则会导致无底线的诚信,这就无法在合同法的公平和效率价值间取得平衡。第二章分别考察了法国、英国、美国和德国的先合同信息披露法律制度。通过比较法上的考察不难发现这个制度是以一般性规定辅之以特定交易类型中具体的披露规定作为其完整形态的,并且不论是前者还是后者都应当得到充分重视。限于篇幅,本章并未针对后者进行细致的考察,只是着重于总结和描述这个制度在这些国家的概况,因此将本章标题称为“概述”,特定交易类型中具体的披露规定的比较法考察任务交由第五章完成。第三章对如何构建这个制度的主要学术观点进行梳理和评析。在这个问题的探讨上,美国法学界无疑是走在前面的。因此,本章第一节对美国著名法学家的主要观点进行了概括。这些观点大多从信息的分类入手探讨应披露的信息范围：如Kronman将信息分为有目的获得的信息和偶然获得的信息,应披露的是偶然获得的信息；Kim Scheppele认为应当将信息区分为深层秘密和浅层秘密,应披露的为深层秘密;Cooter和Ulen提出了将信息的获取和作用两个环节综合考量的路径,并认为应按这两个环节分别划分出不同类型的信息,再将其结果进行排列组合得出新的信息类型,在此基础上才能对某信息是否应予披露作进一步探讨;Hirshleifer则将信息分为“先见”和“发现”,而Steven Shavell继承了Hirshleifer的分类,但将“发现”改为“有社会价值的信息”,并认为应当至少披露“先见”。由于第一节所列出的观点大都是从经济学角度予以考量,那么对这些观点的经济学基础理论进行阐释就成为对这些观点进行准确评价所必要的一环。因此本章第二节阐述了“合同的意义和功能”、“双方当事人在信息获取上的不平等地位”、“当事人获取信息的动力”三个方面在经济学上不同的理解,首先指出效率价值应当作为合同法价值之一纳入合同法价值体系,而不能片面强调合同法的公平价值,在某些情况下为了鼓励市场上有效率的经济行为甚至应当将效率价值凌驾于公平价值之上；其次,本文认为合同当事人在信息地位上的不平等性决定了应当根据当事人在合同中的地位予以差别对待,如买方和卖方；再次,在存在竞争的情况下,即便法律要求当事人进行信息披露,也不一定会挫败当事人获取信息的动力,这主要源于当事人为了增加合同缔结的可能性或者仅是为获取标准利润之故。第三节则结合第二节所阐述的经济学理论对第一节中的各种观点进行评述,肯定了Kronman的开创性贡献但同时指出了其中的不足,并认为应当吸取Cooter和Ulen所提出的将信息的获取和作用两个环节综合考量的路径,才能形成相对完整的信息披露规则分析框架。而Scheppele的不平等手段理论,能在专业分工日益复杂的当下扮演更重要的角色。Shavell和Hirshleifer的分类则提供了立法和司法上较为可行的考量标准。第四章开始进入先合同信息披露基本规则的构建阶段。第一节对应披露的信息范围设定了基本的披露规则框架。这个框架将信息分为如下六类：有目的获得的增值信息、纯分配信息和减损信息；偶然获得的增值信息、纯分配信息和减损信息。然后本文分别对当事人是否应当披露这六类信息进行了详细探讨,为了使探讨更为清晰和简洁,本文以买卖合同为例作为切入点。第二节则是对基本的披露规则框架进行细化、补充和扩展。首先进一步论证如果赋予一方当事人不予披露的权利,这个权利的范围应当包括消极欺诈。其次,本文认为应披露的信息需要满足重要性及法律上的可证明性两点要求。再次,应当对披露行为本身进行限定。最后,本文将基本规则框架中掌握信息的卖方抽象为同时拥有信息和信息使用条件的一方,而将掌握信息的买方抽象为只拥有信息但却不拥有信息使用条件的一方。通过这种主体的抽象化处理,本文实现了基本规则框架的适用范围从买卖合同向雇佣、保险、租赁以及运输等其它合同的拓展。第三节探讨了本文提出的基本规则的例外,这些例外包括：当事人的过错行为；当事人对于信息问题作出明示或者默示安排；基于特殊信赖的例外；不正当手段获得的信息。第四节首先探讨了先合同信息披露规则与瑕疵担保规则、反欺诈规则、错误救济规则之间的衔接问题。在此基础上,本文对先合同信息披露规则设定了变更和撤销合同、返还原物、赔偿损失三方面法律责任,并提出应当通过惩罚性赔偿责任的设定,拉开与瑕疵担保规则之间的距离,实现将纠纷解决提前化、客观化以及引导诚信磋商氛围的目的。本章最后列举了先合同信息披露规则自身的局限性,以实现论证上的周延。第五章主要探讨第四章所提出的先合同信息披露基本规则向具体制度的转化过程中所可能发生的变化,也即进行规则的实证化研究。第一节将第四章提出的基本规则与第二章比较法考察的结果进行比较并作出评析,在此基础上对我国《合同法》的修改提出了具体的建议。对于一个完善的先合同信息披露法律制度而言,除了合同法上的一般性规定外,还应当对重要的、特定的交易类型设定更为具体的披露要求,因此本章接下来第二、三、四节选取了不动产交易、消费者领域、文艺品拍卖市场作为探讨对象(这三者不但是重要的交易类型,而且分别在标的物、主体以及交易方式上具有特殊性)。这三节的论述逻辑具有相似性,均包含我国在这些交易类型中的现状及问题分析、更为具体的比较法考察以及对我国相关立法的建议这三大部分。余论部分在对全文做了简要的总结后,为了实现问题探讨的周延性以及增强先合同信息披露法律制度在合理性上的说服力,对这个制度的缺陷及补足途径做了进一步的探讨。该部分首先对第四章提出的先合同信息披露法律制度的局限性作出回应,指出这些局限性虽然无法通过这个制度自身予以解决,但是市场是完全有能力消化这些局限性的,并在接下来的部分着重探讨了信息中介在解决上述局限性中所能起到的关键作用。虽然本文也承认信息中介的出现会带来新的信息不对称的问题,但这个问题可以通过对信息中介市场提供充分的制度供给并严格落实这些制度等手段得到有效解决。
[Abstract]:With the purpose of constructing the legal system of pre-contract information disclosure in China, this paper discusses the historical evolution, system basis and value, the basic rules of pre-contract information disclosure, and the consideration factors in the construction of the specific system by means of economic analysis and comparative law investigation, and puts forward the corresponding legislative construction. This paper is divided into five chapters as follows: Chapter 1, the first section of the first chapter reviews the historical evolution of the relationship between the basic principle of contract law-freedom of contract and the legal system of prior contract information disclosure. Secondly, in the medieval period when freedom of contract was completely suppressed and in the classical contract law period when freedom of contract was excessively high, there was no soil for the growth of the legal system of disclosure of contract information. This paper demonstrates the rationality and value of the legal system of pre-contract information disclosure from the perspective of economic theory, and selects the three most noticed branches of economics in recent years, namely, information economics, behavioral economics and new institutional economics, as the support of the argument. Section 3 regards the theory of relational contract as the jurisprudence. On the basis of the first two sections, the fourth section puts forward that the principle of conditional good faith should be taken as the basis of contract law. It should be pointed out that the principle of good faith as a means, rather than a result of legislative pursuit, does not mean that information is required to have all-knowing and inexhaustible, but requires conditional good faith after comprehensive consideration of transaction background, conventions, efficiency value and other factors. Chapter 2 examines the legal systems of pre-contract information disclosure in France, Britain, the United States and Germany respectively. It is not difficult to find that this system is a complete form of general provisions supplemented by specific disclosure provisions in a particular type of transaction. This chapter does not examine the latter in detail, but focuses on summarizing and describing the general situation of the system in these countries. Therefore, the title of this chapter is called "Overview" and the comparative law investigation tasks specified in the disclosure of specific types of transactions. Chapter Three sorts out and comments on the main academic viewpoints on how to construct the system. The American legal circles are undoubtedly in the forefront of this issue. Therefore, the first section of this chapter summarizes the main viewpoints of the famous American jurists. Scope of Disclosure: If Kronman divides information into purposeful information and accidental information, it should be disclosing accidental information; Kim Scheppele thinks that information should be divided into deep secret and shallow secret, and should be disclosing deep secret; Cooter and Ulen put forward two links of information acquisition and function. According to these two links, different types of information should be classified, and then new types of information can be obtained by arranging and combining the results. On this basis, whether a certain information should be disclosed can be further discussed; Hirshleifer divides the information into "foresight" and "discovery" and Steven Shavell inherits it. The classification of Hirshleifer is given, but the "discovery" is replaced by "socially valuable information" and the "prescient" should be at least disclosed. Since the views listed in Section 1 are mostly taken into account from an economic point of view, an explanation of the economic fundamentals of these views is necessary for an accurate evaluation of these views. Therefore, the second section of this chapter expounds the different economic understandings of "the meaning and function of the contract", "the unequal status of the two parties in the acquisition of information", "the power of the parties to obtain information". Firstly, it points out that the value of efficiency should be included in the value system of contract law as one of the values of contract law. We can't emphasize the fair value of contract law unilaterally. In order to encourage efficient economic behavior in the market, we should even put the efficiency value above the fair value in some cases. Secondly, this paper argues that the unequal information status of the parties to the contract determines that they should be treated differently according to the status of the parties in the contract. Thirdly, even if the law requires the parties to disclose information in the presence of competition, it will not necessarily frustrate the parties'motivation to obtain information, which is mainly due to the parties' intention to increase the possibility of concluding a contract or merely to obtain standard profits. Economics theory commented on various viewpoints in Section 1, affirmed Kronman's pioneering contribution, but pointed out its shortcomings, and thought that we should absorb Cooter and Ulen's comprehensive consideration of information acquisition and role in order to form a relatively complete framework for information disclosure rules analysis. The classification of Shavell and Hirshleifer provides more feasible legislative and judicial considerations. Chapter IV begins to enter the construction phase of the basic rules of pre-contract information disclosure. Section I sets the basic scope of information disclosure. This framework divides information into six categories: purposefully acquired value-added information, purely distributed information and impaired information; accidentally acquired value-added information, purely distributed information and impaired information. The second section is to refine, supplement and expand the framework of the basic disclosure rules. Firstly, it further demonstrates that if a party is given the right not to disclose, the scope of the right should include negative fraud. Secondly, it argues that the information to be disclosed needs to be satisfied. Thirdly, the disclosure behavior itself should be limited. Finally, this paper abstracts the seller who holds the information in the framework of basic rules as the party who possesses the information and the use conditions of the information at the same time, and abstracts the buyer who holds the information as the party who only owns the information but does not have the use conditions of the information. Through the abstraction of the subject, this paper expands the scope of application of the framework of basic rules from sales contracts to other contracts such as employment, insurance, leasing and transportation. Section III discusses the exceptions to the basic rules proposed in this paper, including: the fault of the parties; the parties to the information issues made. Section 4 first discusses the connection between the rules of information disclosure of prior contracts and the rules of guarantee for defects, anti-fraud rules and the rules of remedy for errors. In order to realize the purpose of advancing the settlement of disputes, objectifying the settlement of disputes and guiding the atmosphere of good faith consultation, this chapter finally lists the limitations of the pre-contract information disclosure rules in order to realize the purpose. Chapter Five mainly discusses the possible changes in the transformation process from the basic rules of prior contract information disclosure proposed in Chapter Four to the specific system, that is, the empirical study of the rules. In addition to the general provisions of the contract law, it should also set more specific requirements for disclosure of important and specific types of transactions. Therefore, the following two, three and four sections of this chapter are selected as unchanged. Property transaction, consumer domain and auction market of literary and artistic products are the objects of discussion (these three are not only important types of transactions, but also have particularities in the subject matter, subject and mode of transaction). The logic of these three sections is similar, including the analysis of the current situation and problems in these types of transactions in China, and more specific than the former. After a brief summary of the full text, the last part makes a further discussion on the defects and the ways to make up for them in order to realize the perimeter of the discussion and enhance the reasonableness of the legal system of pre-contract information disclosure. This paper first responds to the limitations of the legal system of pre-contract information disclosure proposed in Chapter 4, pointing out that although these limitations can not be solved by the system itself, the market is fully capable of digesting these limitations, and in the next part focuses on the role that information intermediaries can play in solving the above limitations. Although this paper also acknowledges that the emergence of information intermediaries will bring about new problems of information asymmetry, this problem can be effectively solved by providing adequate institutional supply to the information intermediary market and strictly implementing these systems.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2205239
[Abstract]:With the purpose of constructing the legal system of pre-contract information disclosure in China, this paper discusses the historical evolution, system basis and value, the basic rules of pre-contract information disclosure, and the consideration factors in the construction of the specific system by means of economic analysis and comparative law investigation, and puts forward the corresponding legislative construction. This paper is divided into five chapters as follows: Chapter 1, the first section of the first chapter reviews the historical evolution of the relationship between the basic principle of contract law-freedom of contract and the legal system of prior contract information disclosure. Secondly, in the medieval period when freedom of contract was completely suppressed and in the classical contract law period when freedom of contract was excessively high, there was no soil for the growth of the legal system of disclosure of contract information. This paper demonstrates the rationality and value of the legal system of pre-contract information disclosure from the perspective of economic theory, and selects the three most noticed branches of economics in recent years, namely, information economics, behavioral economics and new institutional economics, as the support of the argument. Section 3 regards the theory of relational contract as the jurisprudence. On the basis of the first two sections, the fourth section puts forward that the principle of conditional good faith should be taken as the basis of contract law. It should be pointed out that the principle of good faith as a means, rather than a result of legislative pursuit, does not mean that information is required to have all-knowing and inexhaustible, but requires conditional good faith after comprehensive consideration of transaction background, conventions, efficiency value and other factors. Chapter 2 examines the legal systems of pre-contract information disclosure in France, Britain, the United States and Germany respectively. It is not difficult to find that this system is a complete form of general provisions supplemented by specific disclosure provisions in a particular type of transaction. This chapter does not examine the latter in detail, but focuses on summarizing and describing the general situation of the system in these countries. Therefore, the title of this chapter is called "Overview" and the comparative law investigation tasks specified in the disclosure of specific types of transactions. Chapter Three sorts out and comments on the main academic viewpoints on how to construct the system. The American legal circles are undoubtedly in the forefront of this issue. Therefore, the first section of this chapter summarizes the main viewpoints of the famous American jurists. Scope of Disclosure: If Kronman divides information into purposeful information and accidental information, it should be disclosing accidental information; Kim Scheppele thinks that information should be divided into deep secret and shallow secret, and should be disclosing deep secret; Cooter and Ulen put forward two links of information acquisition and function. According to these two links, different types of information should be classified, and then new types of information can be obtained by arranging and combining the results. On this basis, whether a certain information should be disclosed can be further discussed; Hirshleifer divides the information into "foresight" and "discovery" and Steven Shavell inherits it. The classification of Hirshleifer is given, but the "discovery" is replaced by "socially valuable information" and the "prescient" should be at least disclosed. Since the views listed in Section 1 are mostly taken into account from an economic point of view, an explanation of the economic fundamentals of these views is necessary for an accurate evaluation of these views. Therefore, the second section of this chapter expounds the different economic understandings of "the meaning and function of the contract", "the unequal status of the two parties in the acquisition of information", "the power of the parties to obtain information". Firstly, it points out that the value of efficiency should be included in the value system of contract law as one of the values of contract law. We can't emphasize the fair value of contract law unilaterally. In order to encourage efficient economic behavior in the market, we should even put the efficiency value above the fair value in some cases. Secondly, this paper argues that the unequal information status of the parties to the contract determines that they should be treated differently according to the status of the parties in the contract. Thirdly, even if the law requires the parties to disclose information in the presence of competition, it will not necessarily frustrate the parties'motivation to obtain information, which is mainly due to the parties' intention to increase the possibility of concluding a contract or merely to obtain standard profits. Economics theory commented on various viewpoints in Section 1, affirmed Kronman's pioneering contribution, but pointed out its shortcomings, and thought that we should absorb Cooter and Ulen's comprehensive consideration of information acquisition and role in order to form a relatively complete framework for information disclosure rules analysis. The classification of Shavell and Hirshleifer provides more feasible legislative and judicial considerations. Chapter IV begins to enter the construction phase of the basic rules of pre-contract information disclosure. Section I sets the basic scope of information disclosure. This framework divides information into six categories: purposefully acquired value-added information, purely distributed information and impaired information; accidentally acquired value-added information, purely distributed information and impaired information. The second section is to refine, supplement and expand the framework of the basic disclosure rules. Firstly, it further demonstrates that if a party is given the right not to disclose, the scope of the right should include negative fraud. Secondly, it argues that the information to be disclosed needs to be satisfied. Thirdly, the disclosure behavior itself should be limited. Finally, this paper abstracts the seller who holds the information in the framework of basic rules as the party who possesses the information and the use conditions of the information at the same time, and abstracts the buyer who holds the information as the party who only owns the information but does not have the use conditions of the information. Through the abstraction of the subject, this paper expands the scope of application of the framework of basic rules from sales contracts to other contracts such as employment, insurance, leasing and transportation. Section III discusses the exceptions to the basic rules proposed in this paper, including: the fault of the parties; the parties to the information issues made. Section 4 first discusses the connection between the rules of information disclosure of prior contracts and the rules of guarantee for defects, anti-fraud rules and the rules of remedy for errors. In order to realize the purpose of advancing the settlement of disputes, objectifying the settlement of disputes and guiding the atmosphere of good faith consultation, this chapter finally lists the limitations of the pre-contract information disclosure rules in order to realize the purpose. Chapter Five mainly discusses the possible changes in the transformation process from the basic rules of prior contract information disclosure proposed in Chapter Four to the specific system, that is, the empirical study of the rules. In addition to the general provisions of the contract law, it should also set more specific requirements for disclosure of important and specific types of transactions. Therefore, the following two, three and four sections of this chapter are selected as unchanged. Property transaction, consumer domain and auction market of literary and artistic products are the objects of discussion (these three are not only important types of transactions, but also have particularities in the subject matter, subject and mode of transaction). The logic of these three sections is similar, including the analysis of the current situation and problems in these types of transactions in China, and more specific than the former. After a brief summary of the full text, the last part makes a further discussion on the defects and the ways to make up for them in order to realize the perimeter of the discussion and enhance the reasonableness of the legal system of pre-contract information disclosure. This paper first responds to the limitations of the legal system of pre-contract information disclosure proposed in Chapter 4, pointing out that although these limitations can not be solved by the system itself, the market is fully capable of digesting these limitations, and in the next part focuses on the role that information intermediaries can play in solving the above limitations. Although this paper also acknowledges that the emergence of information intermediaries will bring about new problems of information asymmetry, this problem can be effectively solved by providing adequate institutional supply to the information intermediary market and strictly implementing these systems.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D923.6
【参考文献】
相关期刊论文 前1条
1 赵榆;;2009年全国文物与艺术品拍卖情况的回顾与展望[J];收藏家;2010年01期
，本文编号：2205239
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2205239.html
